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A judge of the Supreme Court pronounced judgment for specific performance of a real estate transaction. The defendants filed an appeal. This Court granted security for costs in that appeal. Before the trial order was entered, the plaintiff applied to vary the terms of the order. The trial judge agreed to reopen the hearing. The defendants filed a second notice of appeal, challenging the decision to re-open the hearing. The plaintiff applied for orders consolidating the two appeals, and for security for costs in the second appeal. Held: Applications adjourned, not to be brought on except in conjunction with a stay application or after completion of the hearing in the court below. It is not apparent that a direction of a trial judge re-opening a hearing constitutes an appealable order. If the second appeal is a nullity, the proceedings should not be consolidated. In any event, practicality demands that the hearing in the Supreme Court be completed before the appeals to this court proceed further. There is no purpose to be served by making the orders sought at this point in the litigation.

This appeal arises from an order made on the parties’ cross-applications to make changes to the respondent’s spousal support obligation to the appellant. The parties set the spousal support amount through a separation agreement embodied in a divorce order in 2005. The order provided that spousal support could be reviewed after 3 years. In 2016, the respondent applied to terminate his support obligations and the appellant applied to increase the amount. The judge ordered support to continue at the current amount until October 2021. The appellant appealed the amount and the respondent cross-appealed the duration. Held: Appeal allowed; cross-appeal allowed. On review, the judge erred by effectively applying a material change in circumstances test in the review analysis; by misapprehending the evidence on the parties’ division of property; and by erroneously determining that the respondent’s income had not increased because the judge incorrectly determined that the corporate income could not be included in the assessment and that the change in work responsibilities that led to the increase were unrelated to any contributions that the appellant made during their marriage. The judge did not need to undertake a variation analysis because the review provision was unlimited in scope. In his variation analysis, the judge misconstrued or overlooked material evidence in determining there was no connection between the marriage and the change in the respondent’s financial circumstances.

The accused hit the complainant repeatedly on the head, resulting in a cut on his forehead that required stitches and a cut on top of his head that required staples. The accused was charged with aggravated assault. The trial judge acquitted the accused of aggravated assault on the ground that the complainant’s injuries did not qualify as a “wound” as that word is used in the aggravated assault provision in the Criminal Code. Instead, he convicted him of the lesser included offence of assault causing bodily harm. The Crown appeals the acquittal. Held: Appeal allowed, conviction for aggravated assault substituted. The word “wound” had an established meaning at common law in the U.K. It was any break in the continuity of the “whole skin”, which meant a break that went deeper than the epidermis and pierced the dermis. When the word was adopted into Canadian law in the late 19th century, the established legal meaning was adopted as well. It retained that meaning until 1983, when assaults were reorganized into a three-tier system. That reorganization necessarily implied a change in the definition. The definition of “wound” is now a break in the continuity of the whole skin that also constitutes serious bodily harm. Here, the trial judge applied the wrong legal standard. If he had applied the correct standard, his factual findings would have led to the conclusion that the victim’s injuries were wounds.

The issue in this appeal is whether properties owned by universities on which third parties provide food services for university purposes are exempt from property taxation, following an amendment to the University Act in 2011. The Property Assessment Appeal Board concluded that the effect of the 2011 amendment was to remove the exemption from such properties. A chambers judge held that this conclusion was reasonable, and dismissed an appeal by way of stated case. The universities appeal. Held: Appeal dismissed. The effect of the 2011 amendment was to remove the property tax exemption from university-owned properties used by third party businesses, whether or not they are used for university purposes.

This appeal considers whether Telus’s relocation costs are properly characterized as attributes of market value or as a value to owner for property assessment purposes. Telus appeals the dismissal of its appeal by way of stated case from a decision of the Property Assessment Appeal Board. That decision involved the value of a property Telus owned that housed a Central Office Cable Vault, which Telus uses to deliver telephone services to customers. Telus argued its costs of relocating the Cable Vault should be considered in determining the market value of its Property for property assessment purposes, which would substantially reduce its property value. The Board concluded relocation costs were not a relevant consideration in determining the Property’s market value, as the costs were attributable to Telus’s use of the land for its business and were not attributable to the land itself, and this was “in a sense value to owner”. The question on appeal is whether the Board’s decision was reasonable. Telus relies on Assessor of Area #01 – Capital v. Nav Canada, 2016 BCCA 71 and argues the Board erred in concluding its relocation costs were a value to owner. Held: appeal dismissed. It was open to the Board to accept Mr. Redlich’s expert opinion that the relocation costs were not attributes of the land and should be viewed as a value to owner. The term “value to owner” as explained in Nav Canada does not apply in the circumstances of this case in the manner contended by Telus.

Mr. Chandler appeals his committal for extradition to the United States of America in relation to charges of fraud and applies for judicial review of the Minister’s surrender order. Held: Appeal and judicial review application dismissed. Notwithstanding Mr. Chandler’s arguments that he was legitimately pursuing a property development with incentivized investors, and the requesting state’s withdrawal of one piece of evidence, the judge made no error in finding the evidence sufficient to justify committal for trial on fraud charges. The Minister considered Mr. Chandler’s arguments and the surrender order was reasonable.

The Chief Justice and Justices of the Court of Appeal for British Columbia also sit, respectively, as the Chief Justice and Justices of the Court of Appeal of Yukon. From time to time, this section of the website includes recently released Court of Appeal of Yukon judgments.

The Crown applies for leave to appeal the order of a summary conviction appeal court judge concerning a fit sentence for an adult offender who had committed a sexual assault of a 14-year-old girl. The Crown submits the summary conviction appeal judge erred by imposing an unfit sentence; erred by refusing to consider sentences from other provinces and territories; refused to consider the Crown’s arguments on parity; erred by deciding not to vary the sentence; and failed to give sufficient reasons for meaningful appellate review. Held: application dismissed. The Crown identified no important question of law where there was a reasonable prospect of success and it is not in the interests of justice to grant leave to appeal in the circumstances of this case. It is troubling that the summary conviction appeal judge reserved judgment and released her reasons three months later, apparently well past the warrant expiry date. From the appeal judge’s language in refusing to impose the nine month sentence that she had determined to be a fit sentence, it is apparent she was not prepared to alter the sentence at that time. A better approach would have been to impose the nine month sentence and then stay the sentence as the appellant had likely already served his sentence.